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Supreme Court 10 December 2020

R v Sharpe (No 1)

[2020] NSWSC 1794

Homicide
EVIDENCE ADMISSIBILITY WHETHER THAT EVIDENCE WAS RELEVANT APPLICATION OF SO CALLED “O’LEARY PRINCIPLE” EVIDENCE NOT RELEVANT

Citation: R v Sharpe (No 1) [2020] NSWSC 1794
Court: Supreme Court of NSW
Date: 10 December 2020
Judge(s): Bellew J

Background

The accused faced trial for the murder of a neighbour, Andrew Peter Drake, allegedly stabbed to death on the evening of 13 April 2019 at Surfside, NSW. There was no dispute that the accused inflicted the fatal stab wounds. The sole issue at trial was whether the accused acted in defence of his father.

In the hours before the stabbing, a nearby resident, Glenn Martin, observed the accused at his home holding what appeared to be a short-barrelled shotgun (which he pointed briefly toward Mr Martin and his partner) and later a large Bowie-type hunting knife, which the accused moved back and forth at his side. These observations were made approximately one hour before the deceased was killed.

The Crown sought to lead Mr Martin's evidence at trial. The accused objected, and Bellew J resolved the admissibility question in this pre-trial ruling.

  • Whether Mr Martin's observations of the accused holding a rifle and a knife constituted part of a connected series of events including the murder, rendering the evidence admissible under the so-called "O'Leary principle"
  • Whether those observations were separately admissible as evidence of the accused's state of mind shortly before the killing
  • If admissible on either basis, whether the evidence should nonetheless be excluded under s 137 of the Evidence Act 1995 (NSW) on the ground that its probative value was outweighed by the danger of unfair prejudice

Decision

Bellew J began by confirming that the O'Leary principle, derived from the High Court's decision in O'Leary v R (1946) 73 CLR 566, remains part of the law of evidence in NSW and was not abrogated by the Evidence Act 1995 (NSW). Under that principle, evidence of prior conduct may be admitted where it forms part of an inseparable or connected series of events that, without the surrounding context, would render the central event unintelligible or artificial to a jury.

His Honour found the principle did not apply on the facts. The accused's conduct with the rifle and the knife were essentially isolated acts, unconnected to the sequence of events leading to the stabbing. This was not a case where excluding the prior conduct evidence would leave the murder appearing "unreal" or "not very intelligible" to the jury. The mere temporal proximity of the observations to the killing did not, of itself, render the evidence admissible.

Bellew J also rejected the state-of-mind basis for admission. Mr Martin's observations showed only that the accused was holding two items. While the accused briefly pointed the rifle toward Mr Martin, that was an isolated event unaccompanied by any outward act of aggression. The knife conduct, described as moving the blade back and forth rather than swinging it, similarly lacked any accompanying expression of hostility. His Honour held that the Crown's submission overstated the inferences properly available from what Mr Martin had seen.

Because the evidence was found to be not relevant in the first place, Bellew J did not need to reach the question of exclusion under s 137 of the Act.

Orders Made

• The evidence will be excluded.

Key Takeaways

  • The O'Leary principle permits evidence of prior conduct to be admitted where it forms part of a series of connected events that would otherwise leave the central conduct unintelligible to a jury, and the Supreme Court confirmed the principle survives the Evidence Act 1995 (NSW).
  • Temporal proximity alone does not establish relevance: the fact that prior conduct occurred approximately one hour before a killing did not, without more, bring it within the O'Leary principle or make it admissible as state-of-mind evidence.
  • Isolated acts of holding a weapon, unaccompanied by any outward expression of aggression or hostility, were insufficient to support an inference of aggressive or hostile state of mind at the time of the alleged offence.
  • A prior course of conduct is distinguishable from a single isolated act: the O'Leary principle is directed at connected or continuous sequences of behaviour, not discrete events that stand apart from the transaction in question.
  • Where prior conduct evidence fails the relevance threshold entirely, the court does not proceed to consider discretionary exclusion under s 137 of the Evidence Act 1995 (NSW).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- O'Leary v R (1946) 73 CLR 566; [1946] HCA 44
- R v Adam (1999) 106 A Crim R 510; [1999] NSWCCA 189
- R v Serratore [2001] NSWCCA 123